165 Mass. 30 | Mass. | 1895
The questions of the due care of the plaintiff and of the negligence of the defendant’s servants, we think, were for the jury, on the evidence which appears in the exceptions. The first request for instructions was therefore properly refused. Driscoll v. West End Street Railway, 159 Mass. 142. Ellis v. Lynn & Boston Railroad, 160 Mass. 341.
The second request ought not to have been given in the form in which it was offered, and the instructions upon this part of the case were correct. Neff v. Wellesley, 148 Mass. 487.
The third request could not properly have been given as an absolute rule of law. The decisions of this court show that a distinction has been taken with respect to the duty to look and listen when crossing the tracks of a steam railroad where a railroad train has the exclusive right of way, and when crossing the tracks of a street railway company in a public street where the cars have not an exclusive right of way, but are run in the street in common with other vehicles and with travellers. The fact that the power used by the street railway company is electricity, instead of that of horses, has not been deemed by the court sufficient to make the rule of law which has been laid
It was in the discretion of the court to permit the witness Thayer to be recalled at the close of the defendant’s testimony, and, in view of the fact that some of the defendant’s witnesses had testified that the car at the time of the accident was going at the usual rate of speed, we see no harm in permitting a witness to testify what that rate was, if there was a usual rate and he knew what it was. Exceptions overruled.